Scarlet-Letter Status: Should Sex Offenders Admit Crimes on Facebook?

A new Louisiana law requires convicted sexual deviants to note their past on their profiles.

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On August 1, 2012, a new law in Louisiana will require sex offenders to register their criminal histories on social networking sites like Facebook. Because names like "the Scarlet Letter law" are being bandied about in the worst possible way, there seems to be some confusion about what the law is, what it does, and who it affects.

On its surface, the legislation might seem like a political ploy in a post-Katrina state painted solid red. Lawmakers who voted "Yea" can now appear tough on crime, savvy to technology issues, and protective of children, all while beating up the most-detested segment of the criminal population. And while the political benefits do probably apply, this legislation has a history that suggests careful thought, with goals loftier than the next election cycle.

Four months ago, a district court struck down a precursor to the law about to take force. Louisiana Revised Statute 14:91.5 denied chat room and social networking access to persons convicted of "indecent behavior with juveniles," "pornography involving juveniles" "computer-aided solicitation of a minor," "video voyeurism," or sexual offenses in which the victim was a minor. The law was defeated in court because it was deemed too broad. (How to you define a chat room, for example? Can any site with a comments section be considered one?) Lawmakers went back to work, with a close eye on the First Amendment.

Presently (in Louisiana, at least) sexual offenders are required to register their names, addresses, crimes, and photographs whenever they move near schools, parks, or any place where children might congregate. This process involves direct mail (Louisiana residents will be familiar with the yellow postcards that occasionally appear in mailboxes) and public notice in the newspaper.

The goal of the new Internet bill focuses on extending the notification law online. Already, there are several federal, state, and independent sex offender registries on the web, some of which actually overlay the addresses of convicted offenders on an interactive Google map.

The result of the legislators' efforts was Louisiana House Bill No. 249, and later, Act No. 385. The bill rigorously defined a social networking service as a website whose purpose is:

[S]ocial interaction with other networking website users, which contains profile web pages of the members of the website that include the names of nicknames of such members, that allows photographs and any other personal or personally identifying information to be placed on the profile web pages by such members, and which provides links to other profile web pages on the networking website of friends or associates of such members that can be accessed by other members of visitors to the website.

A networking website provides members of, or visitors to, such website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the networking website."

Even a software engineer would marvel at language that describes Facebook so precisely without actually naming it. This new bill also addressed a serious criticism leveled at the statute previously struck down by the U.S. District Court: Should a user of Craigslist have to announce his or her criminal past, just because he or she wants to buy a cheap sofa? This new proposal specifically excluded sites whose primary purpose is commerce, or the dissemination of news. Louisiana Governor Bobby Jindal went on to sign the bill into law.

I spoke by phone with Louisiana State Representative Jeff Thompson, the driving force behind the legislation. He said that this has been a deliberate process of balancing public safety and the First Amendment, while giving the criminal justice system an additional tool in prosecuting the most heinous of crimes. He gave great credit to Facebook's policies already in place: "They don't allow these types of people on their site. If they discover one, they'll get rid of them. I really respect that."

He repeatedly noted that this bill provides for prosecutorial discretion. In other words, should a 15-year-old and a 16-year-old engage in consensual sexual activity -- a so-called "Romeo & Juliet" situation -- they would not have their lives ruined as a result of this law. Likewise, "the types of incidents you might find at Mardi Gras" would not lead to the worst Facebook status update of all time. Said Representative Thompson, "Is this a perfect solution? No. But I'm willing to work with anyone to make it better."